Judge Bork's judicial philosophy is fair game

ByStanley I. KutlerJuly 13, 1987

PRESIDENT REAGAN's nomination of Judge Robert H. Bork to fill the current Supreme Court vacancy will undoubtedly generate extended debate and bitter acrimony in the Senate. Much of the division will center on Judge Bork's fitness and qualifications. But the underlying question will concern the nature and meaning of the Senate's advise-and-consent role. The question is not new, but the familiar division of power between the executive and legislative branches in the past 15 years has given it a special urgency. In particular, Richard Nixon's conflicts with the Senate over court nominations have relevance for the events about to unfold.

Questions regarding Mr. Bork's links to the Nixon era and the Watergate affair are the wrong ones. They deserve brief clarification. Elliot Richardson has now publicly acknowledged what he and William Ruckelshaus have indirectly or privately admitted for years: They urged Bork to remain at his post as solicitor general in 1973 and carry out the President's order to dismiss Archibald Cox.

The President had the power to do so. But Mr. Richardson had promised the Senate that he would not fire Mr. Cox. The firestorm following Cox's dismissal was not in support of Cox as a neo folk idol but outrage with a President who made it perfectly clear that he had no intention of complying with court orders to subpoena evidence. Key congressmen began to doubt the President. Their concern was with the evidence, not the fate of Cox. Also, the record is clear that Bork supported the appointment of a new special prosecutor; he negotiated an agreement with Leon Jaworski that gave the new special prosecutor clear authority to pursue evidence in a fashion that Mr. Nixon had wished to deny Cox.

Nixon nominated five men to the Supreme Court. Two were rejected by the Senate. Another aroused substantial debate and negative votes. When the Senate rejected Clement F. Haynsworth and G. Harrold Carswell in late 1969 and early 1970, respectively, it marked the first such denials of presidential nominations to the court since 1930. Numerous, sharp conflicts, over such issues as Cambodia and impoundment of funds, marked Nixon's first years with Congress. Yet, until 1970, none matched in intensity the issue of institutional authority and constitutional powers the court nominations raised.

The Haynsworth and Carswell nominations were avowedly ideological. They represented Nixon's ``Southern Strategy.'' Presidential assistant Harry Dent reported then that ``the President particularly wants to see us scoring points ... in the South.'' Nixon demanded ``strict constructionists'' who would ``balance'' the court. The ideological gauntlet was cast. But the Senate was dominated by ideologues with their own concerns.

Which ideological agenda deserved primacy? Nixon had no problem with that. After Carswell's rejection by the Senate, Nixon responded with a display of public anger, accusing the Senate critics of Haynsworth and Carswell of ``vicious assaults'' on the nominees' intelligence, integrity, and character. The charges of racism against both men were hypocritical, the President said; at issue was their legal philosophy. But Nixon's challenge appealed to the constitutional as well as the political issues.

Nixon contended that the senators had frustrated his ``constitutional responsibility'' of appointment by imposing their philosophical views on the process. With vintage self-pity, the President rhetorically asked if he would be ``accorded the same right of choice in naming Supreme Court justices ... freely accorded to my predecessors of both parties.''

The President was simply wrong: During 180 years, the Senate had rejected 24 Supreme Court nominees, nearly a fourth of the total justices in United States history until then. The framers' ``original intention'' for senatorial ``advice and consent'' was quite clear. Alexander Hamilton wrote during the ratification debates that ``the possibility of rejection would be a strong motive to care in proposing,'' and ``it would be a silent check on the spirit of favoritism of the President, and it would tend greatly to prevent the nomination of unfit characters.'' Senatorial approval is obviously another constitutional check and balance; its aim is to ensure presidential ``care'' in the selection process.

When the occasion arose for two new court appointments in 1971, Nixon aides Pat Buchanan and Leonard Garment debated whether the President should directly confront senatorial political preferences. Mr. Buchanan supported a Southern candidate with a dismal civil rights record, saying he was not ``averse'' to a Senate ``mini-rebellion.'' Mr. Garment opposed the suggestion, counseling caution and respect for the Senate's sensibilities. Buchanan pursued the President's heart, but Garment won his head as Nixon nominated Lewis Powell to ``represent'' the South.

Modern precedents demonstrate that the Democrats' treatment of Nixon's nominees hardly constituted original sin. In 1968, minority Republicans mounted a successful filibuster to thwart President Lyndon Johnson's attempt to replace Chief Justice Earl Warren with Abe Fortas. Republicans had some valid questions regarding Mr. Fortas's integrity and character, but most frankly acknowledged that they wished to keep the seat vacant for a philosophically different appointment in the event of Nixon's election. In 1930 a Democratic-controlled Senate rejected President Herbert Hoover's nomination of Circuit Judge John J. Parker, charging Judge Parker with a slavish devotion to antilabor precedents. And now we have the irony of Democrats who are concerned that Bork will be disrespectful of precedents.

Senatorial concern with the philosophical and ideological views of judicial nominees is hardly new - or unwarranted. If a president demands a particular judicial philosophy as part of his nominee's qualifications, it is fitting that the Senate's role of advice and consent involves a scrutiny of those qualifications.

Presidential chief of staff Howard Baker Jr. is not unfamiliar with the Nixon era. Perhaps that explains his willingness to discuss a possible list of nominees with Sens. Joseph Biden Jr., Robert Byrd, Robert Dole, and Strom Thurmond. Perhaps it is a sign of President Reagan's political slippage. No matter. Four senators do not a Senate make. There are 96 other voices yet to be heard. The President should know about reruns.

In 1959 a young Arizona lawyer, outraged with the Warren court's decisions enforcing the ``equal protection of the laws'' for racial minorities, demanded that the Senate do a better job of determining the judicial philosophy of Supreme Court nominees. ``The only way for the Senate to learn of these sympathies,'' William Rehnquist wrote, was to make proper inquiries during the confirmation process. The Senate may take that as its text; the rest is commentary.

Stanley I. Kutler, E. Gordon Fox professor of American institutions at the University of Wisconsin, is writing a history of Watergate to be published by Alfred A. Knopf.